CHANTELLE ALEXANDER, Plaintiff, v. OHIO SECURITY INSURANCE COMPANY, Defendant Case No. 1:24-cv-24846-RAR United States District Court, S.D. Florida Entered on FLSD Docket May 13, 2025 Louis, Lauren F., United States Magistrate Judge ORDER ON DEFENDANT'S MOTION TO COMPEL AND PLAINTIFF'S MOTION TO QUASH AND FOR PROTECTIVE ORDER *1 THIS CAUSE is before the Court upon Defendant Ohio Security Insurance Company's Motion to Compel (ECF No. 26) and Plaintiff's Motion to Quash and for Protective Order (ECF No. 27). Each Motion is fully briefed and ripe for review. The Court has considered the Motions, Responses (ECF Nos. 31, 28), Replies (ECF Nos. 33, 32), and the record as a whole. For the reasons set forth below, Defendant's Motion (ECF No. 26) is GRANTED, in part, and DENIED, in part, and Plaintiff's Motion (ECF No. 27) is DENIED. I. BACKGROUND In 2019, Plaintiff was involved in an automobile accident with Defendant's insured, a non-party. As a result of the accident, Plaintiff claims to have suffered significant injuries resulting in damages valued beyond the policy's limits. According to her complaint, Plaintiff offered to settle her claim against Defendant's insureds within applicable policy limits; Plaintiff alleges that she provided medical information substantiating her demand. When Defendant did not accept Plaintiff's offer to settle her claim, she sued Defendant's insureds in the Eleventh Judicial Circuit in and for Miami-Dade County, Florida for damages arising from the accident. During the pendency of the underlying lawsuit, Plaintiff served a proposal for settlement offering to settle her claim within policy limits; Defendant did not accept Plaintiff's offer. The underlying lawsuit went to trial, and a jury returned a verdict in favor of Plaintiff. Plaintiff now sues Defendant for one count of common law bad faith. Defendant submits that it represented the interests of multiple insureds in the underlying action and was fielding multiple offers to settle by both Plaintiff and another claimant involved in the accident, non-party Robin Hall. Defendant theorizes that despite its best efforts to settle all claims, Plaintiff in the underlying action “made settlement offers and demands knowing that Ohio Security was receiving competing demands from the other claimant and that policy limits had been eroded by other settlements.” (ECF No. 26 at 7). The Parties initially presented discovery disputes during an informal discovery hearing before the undersigned Magistrate Judge; after the hearing the Court afforded the Parties leave to file written motions on the Motion to Compel and Motion Quash. See (ECF No. 25). The present motions followed. Defendant moves to compel better responses to Defendant's Request for Production Nos. 1 and 3.[1] Request for Production No. 1 seeks all documents in Plaintiff's custody which support the allegations and claims in her complaint; Request for Production No. 3 seeks certain items out of Plaintiff's counsel's file in the underlying action (hereinafter the “Underlying File”) during which she was represented by the firm Morgan & Morgan. Plaintiff objected to the Requests on the grounds that they sought privileged documents. (ECF No. 26-2 at 2–3). *2 Plaintiff moves to quash a non-party subpoena directed to her counsel at Morgan & Morgan seeking the same documents requested in Request for Production No. 3. In her Motion to Quash and opposition to the Motion to Compel, Plaintiff asserts that documents from the Underlying File are not discoverable on three main grounds. Plaintiff prominently argues that documents within the Underlying File are irrelevant in this bad faith action. Beyond that, Plaintiff argues that documents within the Underlying File implicate the attorney work product doctrine and therefore are subject to protection; to that end, Plaintiff submits that any purported relevance of the documents would not overcome her assertion of work-product protection. And, overall, Plaintiff argues that the subpoena and Request fail to set out a temporal limitation and are therefore overly broad. Because of the obvious overlap between Defendant's Motion to Compel better answers to Request for Production No. 3 and Plaintiff's Motion to Quash, the Court will first consider Plaintiff's three objections to producing the Underlying File before addressing the sufficiency of her responses to the remaining discovery disputes raised in Defendant's Motion to Compel. II. DISCUSSION A. The Underlying File Defendant's request, following conferral of the Parties and concessions in briefing, is now narrowed to four categories of documents: (1) internal discussions, memorandum or communication regarding settlement, excluding attorney-client communications; (2) Communications between Morgan & Morgan and any third-party, including doctors and Robin Hall's attorneys; (3) Any communications between Plaintiff and Morgan & Morgan which also were provided to a third-party; and (4) the Morgan & Morgan fee agreement. See (ECF No. 26 at 6); (ECF No. 27 at 5). Plaintiff's Motion to Quash argues that Defendant's claimed need for the contents of the underlying file cannot overcome the assertion of privilege she makes as to the entire file. Notably, the motion does not explain her assertion of privilege but rather assumes it; her argument primarily challenges the relevance and proportionality of Defendant's demands. Defendant submits that the requested documents are relevant to Plaintiff's willingness to settle the underlying action insofar as they would reveal the motives of Plaintiff and her counsel. (ECF No. 26 at 7). The Court will first address whether the documents are relevant before turning to Plaintiff's purported assertion of work product protection and, thereafter, Plaintiff's objections to scope. i. Relevance Though Defendant's Request and subpoena are split into four discrete categories, Plaintiff makes the sweeping objection that any documents in her Underlying File are irrelevant because the focus of her bad faith claim is on the conduct of the insurer, not the claimant or her attorney. Defendant responds that each category is uniquely relevant to its defense that Plaintiff and her counsel in the underlying action manufactured a scenario in which it would be impossible to avoid a subsequent bad faith action. “In Florida, the question of whether an insurer acted in bad faith in handling claims against the insured is determined under the ‘totality of the circumstances’ standard.” Berges v. Infinity Ins. Co., 896 So. 2d 665, 680 (Fla. 2004). (citation omitted). To that end, “the claimant's unwillingness to settle the claim can be relevant to whether the insurer acted in bad faith under a totality of the circumstances and is a factor that must be considered.” Cawthorn v. Auto-Owners Ins. Co., No. 616CV2240, 2017 WL 8812753, at *4 (M.D. Fla. June 28, 2017). As an affirmative defense, the insurer may be able to show that there was no realistic possibility of settlement within the policy limits. See Ford v. GEICO, No. 14cv180, 2016 WL 11971687, at *1 (N.D. Fla. Feb. 6, 2016) (citing Barry v. Geico Gen. Ins. Co., 938 So. 2d 613, 618 (Fla. 4th DCA 2006)) (denying motion in limine that sought to preclude evidence of plaintiff's counsel's obstructed attempts to settle underlying suit). “As such, courts generally find that work product materials within the claimant's lawyer's underlying litigation file are discoverable.” Robles v. GEICO Indem. Co., No. 19-CV-1293, 2020 WL 3895475, at *3 (M.D. Fla. July 10, 2020) (collecting cases). *3 Plaintiff's argument travels on the notion that insofar as proving her claim is concerned, only the actions of the insurer are relevant. Plaintiff's assertion ignores that Defendant may raise, and indeed has raised, Plaintiff's unwillingness to settle the underlying action as an affirmative defense. Thus, Plaintiff's request for a blanket ruling on relevance to the exclusion of Defendant's otherwise appropriate affirmative defense is contrary to the law. The Court turns to the individual categories of Defendant's request. As to category one, Defendant avers that documents regarding settlement are relevant to its defense that, despite her written settlement offers, Plaintiff intended to manufacture a scenario in which Defendant could not have settled the claim. Defendant substantiates its theory with a demand letter from the attorney who represented Robin Hall, the other claimant injured in the underlying accident, in which Hall's attorney opined that Plaintiff “made it practically impossible for this insurance company to resolve [her] claim at or within the limits while giving due regard to their own insureds’ interests.” (ECF No. 28-1 at 2). The Court finds that such documents, if any exist, are relevant to Defendant's defense. Categories two and three concern communications with outside entities, including other attorneys and third-parties. Defendant argues that the documents are relevant to the conduct and motives of Plaintiff and her counsel in connection with her willingness to settle. For example, Defendant explains that to the extent the file contains medical records that were not provided to Defendant, it would show Plaintiff's lack of intent to substantiate her demand and effort to manufacture the opportunity to bring this bad faith claim. The Court finds these documents are also relevant to the defense advanced. Finally, in category four, Defendant requests Plaintiff's fee agreement with counsel in the underlying action. Plaintiff argues that this request is irrelevant because she is not seeking attorneys’ fees in connection with her claim. Defendant maintains that the fee agreement is relevant to the motives of Plaintiff's counsel in the underlying action as witnesses in the present case. The Court is satisfied that the documents are relevant. ii. Work Product Protection The Court interprets Plaintiff's Motion and briefing as an attempt at asserting the work-product doctrine, albeit—as set forth below—unsubstantiated and therefore due to be overruled. The Florida and federal work product analyses are “for all relevant purposes, the same”; therefore, the Court will proceed with the typical work product analysis under Rule 26(b)(3)(A). Walker v. GEICO Indem. Co., 2017 WL 1174234, at *9 (M.D. Fla. Mar. 30, 2017) (comparing Federal Rule of Civil Procedure 26(b)(3)(A) to Florida Rule of Civil Procedure 1.280(b)(4)); see also Beaubrun v. GEICO Gen. Ins. Co., No. 16-24205-CIV, 2017 WL 1738117, at *4 (S.D. Fla. May 4, 2017). Rule 26(b)(3) provides work product protection to materials that are: “(1) a document or a tangible thing, (2) prepared in anticipation of litigation, and (3) by or for a party, or for his representatives.” Bridgewater v. Carnival Corp., 286 F.R.D. 636, 639 (S.D. Fla. 2011). The party invoking a privilege bears the burden of proving its existence and applicability. See In re Grand Jury Investigation, 842 F.2d 1223, 1225 (11th Cir. 1987). Plaintiff in both her Motion to Quash and her response to the Motion to Compel travels on the assumption that the documents are protected but provides no privilege log or description substantiating the assertion of work product protection. Rather, Plaintiff generally avers that the requests implicate documents “protected by the work-product and attorney-client privilege, including its specific requests for ... counsel's mental impressions regarding settlement.” (ECF No. 27 at 7). Plaintiff cites to case law regarding her relevance objections—which have here been overruled—and more cases regarding the burden a Defendant must meet to overcome the work product doctrine. Absent, however, from Plaintiff's briefing is an affirmative argument supporting her assertion of work product protection for any identified documents within the Underlying File. *4 The cases cited by Plaintiff are largely distinguishable, to the extent those cases implicated a proper assertion of the attorney-client privilege, see Lee v. Progressive Exp. Ins. Co., 909 So. 2d 475, 477 (Fla. 4th DCA 2005), or cases in which the assertion of privilege was substantiated by a privilege log, see Cawthorn, 2017 WL 8812753, at *4, or specific findings following an in camera review of documents, see Est. of Bryant v. Progressive Am. Ins. Co., No. 17-CV-2354, 2018 WL 11344802, at *8 (M.D. Fla. Nov. 7, 2018). Further, in cases where documents were compelled notwithstanding an assertion of work product, courts have had the benefit of an in camera review to support both the privilege and the showing to overcome it. See, e.g. Robles, 2020 WL 3895475, at *3; Batchelor v. Geico Cas. Co., No. 11-CV-1071, 2014 WL 3697691, at *4 (M.D. Fla. Apr. 22, 2014), aff'd, No. 11-CV-1071, 2014 WL 3687490 (M.D. Fla. June 20, 2014). Here, neither side has suggested that the Court undertake an in camera review of the Underlying File, nor would the Court accept such an invitation on the present assertion of work product protection. Indeed, “submitting a batch of documents to the Court in camera” is not a substitute for a factual showing of privilege “because the Court is often without information of what the document concerns or how it came into being or other relevant information which would enable it to determine whether the documents are privileged.” Bridgewater, 286 F.R.D. at 639 (quoting International Paper Co. v. Fibreboard Corp., 63 F.R.D. 88, 94 (D.Del.1974)) (internal quotation marks omitted). Plaintiff's blanket assertion of privilege lacks any factual support to substantiate her claim over the entire file; she has failed to show that documents responsive to categories one through three are protected by the attorney work product doctrine. Specific to the fee agreement, the assertion of privilege is not well-placed. See MR Int'l-USA, LLC v. Biello, No. 18-21754-C I V, 2019 WL 13256772, at *3 (S.D. Fla. July 11, 2019) (finding billing and payment information to be fall outside Florida's attorney-client privilege and the Federal work product doctrine). iii. Objections as to Scope Plaintiff also asserts an overall objection that the Request and subpoena are overbroad and do not contain a temporal scope. Plaintiff argues that without a temporal limitation, counsel in the underlying action would have to spend hours and resources searching through a file that spans six years. (ECF No. 31 at 7). Defendant responds that, though this objection was not raised in conferral, it agrees to limiting the scope of production to documents created up until entry of the amended judgment in the underlying matter on May 3, 2021.[2] (ECF No. 28 at 4). Defendant also argues that it has already limited the request to only certain documents rather than the entire file from the underlying action. Notwithstanding, Plaintiff maintains that Defendant's proffered limitation still encompasses the entire file in the underlying action. (ECF No. 32). Plaintiff's argument as to time and scope remain intertwined with Plaintiff's relevance objections, which have already been overruled. As to the temporal scope, Plaintiff takes an all or nothing approach and provides no reasonable alternative to Defendant's offer of limiting production to documents created before May 3, 2021. Moreover, the Court recognizes that Defendant's categories at issue here have, over the course of conferral and attempted dispute resolution, become narrowly tailored to discovery of Plaintiff's motives in settling. Accordingly, for the reasons set forth above, Plaintiff's Motion to Quash is DENIED, and Defendant's Motion to Compel as to Request No. 3 is GRANTED. B. Request for Production No. 1 Request for Production No. 1 requested all documents in Plaintiff's possession, custody, or control that support the facts, allegations, or claims in the complaint. Plaintiff objected to the request on the basis that it sought opinion work product information and the mental impressions of Plaintiff's current counsel. Plaintiff also objected on the basis that the request is not proportional to the needs of the case because the documents concerning Defendant's breach are in Defendant's own claim file or were exchanged during the underlying action. *5 Plaintiff relies on Sporck v. Peil, 759 F.2d 312, 315 (3d Cir. 1985), to support her objection to producing documents responsive to this Request, which Plaintiff claims would reveal the attorney's mental impressions about the case. The present dispute is unlike the circumstances present in Sporck, which implicated a demand for the identification of documents selected for client review in preparation for deposition. The subject request seeks to discover the factual basis for Plaintiff's claims, and the propriety of such requests have been recognized by courts throughout the Circuit. See, e.g., Local Access, LLC v. Peerless Network, Inc., No. 617CV236, 2018 WL 2938393, *5 (M.D. Fla. June 12, 2018) (overruling objection on work product assertion and listing cases). The Request does not intrude on the attorney's selection of documents, nor is Plaintiff's criticism that it is a “contention” request well placed. Arguably, the Request should be redundant with Plaintiff's initial disclosures. Rule 26 required Plaintiff to produce, without a request, (ii) a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses. Fed. R. Civ. Pro. 26(a)(1)(A)(ii). Defendant's Motion to Compel better responses to Request for Production No. 1 and documents responsive thereto is GRANTED. C. Remaining disputes in Request for Production No. 3, Request for Production No. 2, and Interrogatory No. 1 Defendant avers in Reply that its motion is moot with respect to Request No. 2 and the remaining categories in Request No. 3 on Plaintiff's representation that there are no responsive documents. Nonetheless, Plaintiff shall amend her responses to the Requests to clarify that, after conducting a search of reasonable scope, no responsive documents exist. Similarly, regarding Plaintiff's representation that she no longer intends to seek fees and costs incurred in the underlying action as damages in this suit, her answer to Interrogatory No. 9 is due to be amended and verified. III. CONCLUSION Accordingly, as set forth herein, Defendant's Motion is GRANTED, in part, and DENIED, in part. Plaintiff's Motion to quash subpoena and for protective order is DENIED. An award of attorney's fees is mandatory under Rule 37(a)(5) if a motion to compel is granted unless the court finds the objections to the discovery were substantially justified or the motion was filed prior to making good faith efforts to resolve the dispute, or other circumstances that would render such an award unjust. Though Plaintiff's objections were overruled, I find they were substantially justified; therefore, no fees will be shifted on either Motion. Any outstanding documents or amended discovery responses due to be produced in accordance with this Order shall be served within fourteen (14) days of the Order. DONE AND ORDERED in Chambers at Miami, Florida, this 13th day of May, 2025. Footnotes [1] Defendant also moved to compel better responses to Interrogatory No. 9 and Request for Production No. 2. However, Defendant's Motion as to those requests were mooted by Plaintiff's response in opposition to Defendant's Motion, as noted below. [2] Plaintiff's failure to confer with Defendant with respect to this objection alone may be grounds to deny the Motion. See S.D. Fla. L.R. 7.1(a)(2).